[사정변경에의한가처분취소][공1994.6.15.(970),1613]
The validity of a provisional disposition that goes against the prohibition of disposition without the right to preservation and goes against the disposition.
Despite the absence of the right to be preserved, where a provisional disposition was executed with the decision of prohibition of disposal under the former office, even if an act contrary to such provisional disposition after such provisional disposition was effected, the effect of such act cannot be disregarded by such provisional disposition. In this case, even if a compromise in the principal lawsuit following such provisional disposition was made between the person holding the provisional disposition and the debtor in the lawsuit, and the ownership transfer registration under the name of the person holding the provisional disposition was made based on such protocol of compromise, it cannot be deemed as a registration by the realization of the right to be preserved. Thus, the right to the provisional disposition which was
Article 714 of the Civil Procedure Act
Supreme Court Decision 78Da2295 delivered on February 27, 1979 (Gong1979, 11855) 93Da20870 delivered on July 13, 1993 (Gong1993Ha, 2279) 93Da5204 delivered on March 11, 1994 (Gong194Sang, 1180)
Applicant
Respondent
Busan High Court Decision 92Na15840 delivered on November 11, 1993
The appeal is dismissed.
The costs of appeal shall be assessed against the petitioner.
We examine the grounds of appeal.
1. We examine the reasoning of the judgment of the court below in comparison with the records. The court below is justified in finding facts identical to the reasoning of the judgment, and there is no error of law of misconception of facts due to incomplete deliberation, lack of reasons, and violation of the rules of evidence. There is no reason for the argument.
2. Despite the absence of the right to be preserved, where the provisional disposition was executed with the decision of prohibition of disposal under the old room, the effect of the act cannot be disregarded by the provisional disposition even if it was against the provisional disposition after the provisional disposition was made (see, e.g., Supreme Court Decisions 72Da1271, 1272, Oct. 31, 1972; 78Da2295, Feb. 27, 1979; 79Da64, Apr. 10, 1979). In such a case, the provisional disposition cannot be viewed as a registration by the realization of the right to be preserved, even if there was a compromise in the lawsuit between the person holding the provisional disposition and the debtor, and the ownership transfer registration under the name of the person holding the provisional disposition was made based on such provisional disposition.
As determined by the court below, the registration of the specific portion of the land before the subdivision was made in the name of Nonparty 2, and the right to claim cancellation of the registration of the land before the subdivision was made as the preserved right, and the above non-party 2 was executed with respect to the share of 302 of the land before the subdivision as the obligor and the provisional disposition was decided to prohibit disposal, and then the settlement in the lawsuit is established between the above non-party 2 and the above non-party 2 as to the land before the subdivision, the above non-party 2 had the right to claim cancellation of the provisional disposition. When the settlement in the lawsuit between the above non-party 2 and the above non-party 2 had the right to claim cancellation of the provisional disposition on the ground of the trust as to the part of the land before the subdivision, the above non-party 1 had the right to claim cancellation of the provisional disposition, and it cannot be seen that the above provisional disposition had no right to claim cancellation of the provisional disposition under the name of the respondent and the above non-party 1 had no right to claim cancellation of the above provisional disposition.
3. The record is examined. The respondent's assertion that the application of this case is unfair does not include the purport that the above non-party 1 as the provisional disposition right holder does not exist. Thus, the above judgment of the court below on the ground of this point is just and it cannot be said that there is an error of law by misunderstanding the legal principles of pleading such as the theory of lawsuit. We do not agree with this point.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)